September 17, 2007

Lawprof Michael Dorf is writing about the UC Irvine/Erwin Chemerinsky affair. (Via TaxProf.) He's saying that it wouldn't really have been worth it for Chemerinsky to devote his "enormous talent and energy" to transforming legal education at a school that wasn't already top tier:

Even solid but middling-ranked law schools can have at best a marginal impact on the course of legal education as a whole because no matter what they do to improve the actual outcomes for their students, they won't attract the very best students---and I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students. This explains why Yale Law grads---many of whom learn virtually no law at all while in law school---prove to be excellent lawyers; they have the credentials coming in.

That first sentence is a strange conglomeration of ideas: 1. Students who don't win admission to top tier schools are "mediocre." 2. It's not worth much to transform legal education at one school unless you can affect "the course of legal education as a whole." 3. A top legal educator ought to want to develop new teaching methods on the students who would be the most effective learners under any teaching method. 4. A law professor ought to want to produce the "best lawyers," so, naturally, starting with the "best students" is preferable.

I have a few reactions: 1. Students who don't get into top tier schools don't deserve to be called "mediocre." 2. If you want to test the effectiveness of new methods, what can you prove if you start with students who will do well following any method? 3. If you are truly interested in teaching methodology, you should want to have the greatest effect on the students you reach, not simply to be able to point to successful graduates who began law school so far advanced that they would have done well even if they hadn't been taught anything. 4. Law professors ought to know when they have snobby, elitist opinions and to make some effort to hide it.

UPDATE: Dorf responds to my comments here. He says I "accuse[d him] of being an elitist snob." Well, now, I only insinuated that he might have "snobby, elitist opinions" (and not enough sense to hide it). But, okay, I guess that is basically accusing him of being an elitist snob. I was trying to be a little polite about about it. I believe Dorf concedes that he is elitist. He then addresses what he calls an "objection" of mine, which he restates as: "Why should someone have to have an impact on legal education as a whole rather than just one institution to want to lead that institution?" This wasn't so much an objection as an observation that he had made this point. So his response here isn't very interesting to me. Obviously, having a bigger impact is having a bigger impact. He says nothing about what I thought was the most interesting part of what I had to say:

[He assumed:] 3. A top legal educator ought to want to develop new teaching methods on the students who would be the most effective learners under any teaching method. 4. A law professor ought to want to produce the "best lawyers," so, naturally, starting with the "best students" is preferable....

[I observed:] 3. If you are truly interested in teaching methodology, you should want to have the greatest effect on the students you reach, not simply to be able to point to successful graduates who began law school so far advanced that they would have done well even if they hadn't been taught anything.

I'd like to see Dorf address that.

I should also note this exchange in the comments to his original post:

At 1:22 PM, Legal said…

Michael: I admire your willingness to stick to your guns here. But I think you'll have to yield on one point: it is not true that major academic movements all began at elite schools. How do you account for law and society, which began at -- Wisconsin?

At 2:26 PM, Michael C. Dorf said…

In response to "legal," I concede that law & society originated at Wisconsin. So if it counts as a "major" scholarly movement, then I concede the point, although I'd also note that Wisconsin is one of the country's top public universities.

Wisconsin is also the place of origin for Critical Legal Studies and Critical Race Theory. And let me register my irritation at "Wisconsin is one of the country's top public universities." I would like to see specific recognition of the University of Wisconsin Law School.

58 comments:

All that stuff you wrote about law schools could be said about elementary schools.

Those ranked the best tend to attract more affluent families, whose kids are better prepared, and who give more attention to their kids' education -- especially the part outside of school. The ongoing conversations, the kind and amount of TV they watch, the number of books read to them and available to them, etc. All of this is what shows up on the test scores.

What goes on in the classroom accounts for a small slice of the test scores by which we judge school success.

Something else he might want to have phrasing a little more carefully: saying that many Yale grads have "learn[t] virtually no law at all while in law school" yet are still competent to practice law because they have "credentials" doesn't ring well in the ears of a layperson who hears that the name of the school is more important than what you learn there. Now, I think I understand what he's saying (presumably that students may not know a lot of substantive law, but have a firm grounding in legal process and legal thinking and can this easily pick up the substantive material along the way), but it was an unfortunate way to put the point.

"I doubt that, on average, an excellent innovative education for a mediocre student will produce better lawyers than a pretty good traditional education for excellent students"

Is it true that the excellent students at "elite" law schools become better lawyers than their mediocre counterparts at third or fourth tier schools? I know that's sacred dogma to many in the education world, but it's certainly not true with business schools (some would call it demonstrably false: http://www.forbes.com/2002/04/25/0425ceoschools.html).

One commenter at TaxProf pointed out that bottom feeding trial lawyers from fourth tier schools pretty routinely "mop the floor" with grads of these elite schools in the courtroom. I'm sure the skill set for being an excellent student is similar to that for being an excellent lawyer, but are they so similar there's some sort of guarantee the former will become the latter?

It may be true that the typical 25 year old lawyer from a top-tier school MIGHT be sharper than a typical 25 year old lawyer from a mid-ranked school. But that's comparing apples to oranges.

A mid-ranked school in a community is going to attract a lot of older, nontraditional students who have already demonstrated career success elsewhere, have more life experience, a bigger fund of information, and who can think circles around these kids, by virtue of having a few years on them.

In some cases, they could have gone to a top-ranked school, perhaps (unless admissions criteria are biased against nontrads, which is another issue), but because of family or work connections, have chosen to stay in Orange County rather than, say, Cambridge.

The older nontraditional students will also be a lot more discerning about the quality of their professors.

If this guy can't figure that out, I think the one with the "mediocre mind" is him.

First, some of the most successful trial lawyers in the country who have taken billions from large corporations who were horribly represented by top tier law graduates are from lower tier schools. As a mediocre attorney who graduated from a fifth tier law school, I certainly saw that when I was in private practice. Generally, I was never impressed with the work put out by the large east coast firms we worked with. They were smart people but they had very few people skills and very little understanding of the judges and communities they were working in and generally their clients got taken to the cleaners paying $500 an hour for the privilege.

"Yale grads have "learn[t] virtually no law at all while in law school" yet are still competent to practice law because they have "credentials"

That statement is for law schools what "we destroyed the village to save it" is for the military. Essentially he is saying, no one learns anything or bothers to teach anything practical in elite law schools, but the students still do well because they went to elite law schools. Whatever they teach at Yale, basic logic and the nature of a tautology is not part of the curriculum.

"However, for anyone else out there considering a career in the academy, let it be known: the U.S. Naval Academy is not an elite college; it is first and foremost a branch of the U.S. military and the prestige comes at a big price—it taxes parents, siblings, and participants if they do not understand what they were signing up for."

Wow, I must bow to the amazing intellect of those who attend elite schools. The Naval Academy is a branch of the military. Wow I am so glad that America has schools like Columbia and that obviously superior student. Even though she hasn't learned anything at Columbia she will still be a more productive citizen than the rest of us mortals well, because she has better credentials.

1. Why not? Just as the Blogger gets the Commenters she deserves, so too--do students get the school they deserve. You'll get exactly what you deserve, in this life. No more, no less.

2. Well, why test your methods with the lowest common denominator?

3. The students aren't there for the education, or to learn about the law. They just want jobs and money. That's all they care about. No need to pretend.

4. Law Professors are grey-haired babies who spend their whole life in acedemia trying to hide the fact that they were too scared to go out into the real world, hiding behind elitism, and fake sentiment about "the profession". Pampered babies taken care of for life with free housing and pensions.

Regardless of Chemerinsky or mediocre law students, the real problem is we all already have too many lawyers.

And not enough doctors.

California is seeking to develop a universal health care coverage scheme, yet has half as many doctors per 100,000 residents as Massachusetts does - but already residents of Massachusetts are complaining about longer waits because the supply of doctors is unable to meet the demand resulting from their new universal coverage scheme.

Were the idiots in charge of the U.C. system remotely interested in the public good, they wouldn't think half a second about building another law school, first or fifth tier - instead they'd build a new medical school.

But law schools are very cheap relative to medical schools, and the bang for the buck prestige-wise (does a university care about anything else, esp. a public one?) is obviously a winner, notwithstanding the fact we have far too many lawyers already.

Might I opine that attending a top tier school in any subject v. attending a middle level school may or probably has a great deal to do with getting a highly sought after and/or high paying great first job...that subject has been covered at length on Althouse.

After that, aren't you pretty much on your own...and isn't it the "second or third" job that is gained by your ability and merits not pedigree?

Not to presume that legal studies are a world apart as they are often indicative of a particular mindset and background along with highly preparatory undersgraduate work - and don't forget legacy and connection issues - but after some period of time, if you are really good and really gifted, can't you overcome these issues?

Professional musicians have for a long time auditioned behind a screen or curtain. (not principals who are often recruited or nominated after a significant performance history) Nothing is known of their background and they are simply given a number and go behind the screen and "play". Nothing else matters except their ability.

For the life of me, past the first job I can't see how law should be that much different.

One commenter at TaxProf pointed out that bottom feeding trial lawyers from fourth tier schools pretty routinely "mop the floor" with grads of these elite schools in the courtroom. I'm sure the skill set for being an excellent student is similar to that for being an excellent lawyer, but are they so similar there's some sort of guarantee the former will become the latter?

I think it really depends on what you consider being an excellent lawyer to be. I don't think many graduates of our top flight legal schools go on to become superlative trial lawyers (though there are, of course, exceptions), simply because the vast majority of them will go on to work at mega-firms or international firms, where they'll start off doing document review and due diligence, and eventually graduate to facilitating mergers, acquisitions, rollups, syndicated loans, whatever, or marshalling the facts and so on for a case, while local counsel handles the technicalities of courtroom practice. There's some courtroom practice, to be sure, but a lot less of it than there would be if you ended up working as a sole practitioner handling divorces or evictions or wills or whatever, where you might be in court five days a week.

Re: hdhouse:

After that, aren't you pretty much on your own...and isn't it the "second or third" job that is gained by your ability and merits not pedigree?

In theory, and up to a point. The kinds of skills you acquire working at, say, a white shoe NYC firm -- the kinds of places that it's really hard to get into coming from a mid-tier school -- and the skills you acquire at a smaller law firm are very different. And while it's theoretically possible to transition from the small firm to the megafirm, I think it would be extremely hard (going the other way is also probably kind of difficult). Your academic pedigree casts a long shadow.

Not to presume that legal studies are a world apart as they are often indicative of a particular mindset and background along with highly preparatory undersgraduate work

Actually, I would characterise legal education as involving little or no undergraduate preparatory work at all. I might be misunderstanding what you mean here, but I went to a top-10 law school with zero background in law (I studied mathematics and linguistics). And I was by no means alone. Law schools are where people who can't get jobs and don't know what they want to do end up going.

4. Law Professors are grey-haired babies who spend their whole life in acedemia trying to hide the fact that they were too scared to go out into the real world, hiding behind elitism, and fake sentiment about "the profession". Pampered babies taken care of for life with free housing and pensions.

Actually, one of the things I was most impressed by in law school was the degree to which the law faculty maintained a connection with the actual practice of law, through adjunct faculty who were practising lawyers in their day jobs, to full professors who served as expert witnesses at trial. I'm not sure the practice of law really counts as "the real world," but it's a lot more than you get in most undergraduate disciplines (engineering being, I think, a significant exception -- I know some professors who work as consultants, and I think this is fairly normal).

Yes, a lot of law professors are connected to the practice of law. The problem is that the practice of law has become such a lousy business. Elite law schools pretend to teach, elite law firms then pretned to give their associates meaningful work while at the same time pretending that they are billing their clients for a fair amount for services rendered. None of the people I know who went to work for large firms ever got to do anything approaching the intellectually challenging work they entered the law to do. All they did was review mountains of documents in enormously expensive cat and mouse litigation games. The whole system is nothing but an enormous drag on the productive economy. Over at the Volkh conspiracy they periodiclly congratulate themselves on rising partner salaries, never stoping to consider if lawyers are doing anything more productive to justify those larger salaries beyond perfecting the art of leaching a living off of the top of productive segments of the economy.

Essentially he is saying, no one learns anything or bothers to teach anything practical in elite law schools, but the students still do well because they went to elite law schools.

Well, to be fair, he's saying that only brilliant analytical minds destined to succeed get into elite law schools because elite law schools specifically select for such students. Which, to be fair, is stupid. While he isn't claiming that "mediocre" schools lack any brilliant students who become great lawyers, he is claiming that no graduates of elite schools are incompetent idiots who underperform later in life.

"Well, to be fair, he's saying that only brilliant analytical minds destined to succeed get into elite law schools because elite law schools specifically select for such students."

Actually, that may have been what he meant but that is not what he said. He did not say Yale graduates go on to successful careers because of their "intelligence" or "brilliance", he said they went on to become successful lawyers because of their "credentials". Their, "credentials" have nothing to do with their minds but only their on paper accomplishments, the most notable of which is no doubt graduating from Yale. As least taken at his word, he said exactly what I said he did.

Their, "credentials" have nothing to do with their minds but only their on paper accomplishments, the most notable of which is no doubt graduating from Yale. As least taken at his word, he said exactly what I said he did.

It seems I am destined to "defend" liberals I dislike here, so I might as well go again: Dorf is saying -- if you read his responses to criticism in the comments -- that you don't get the credentials unless you are brilliant and extremely hard-working, so the credentials signal as much. Now, obviously that isn't true. There are plenty of lazy grads of elite schools and plenty of dumb ones and plenty of lazy, dumb ones. There is no shortage of lazy or dumb human beings anywhere on the planet. Apparently the faculty of Columbia law school included. I wonder if Dorf knows how to cook his own meals, or tend to a kid, or fix his car....

On the other side of Babbitt lived Howard Littlefield, Ph.D., in a strictly modern house whereof the lower part was dark red tapestry brick, with a leaded oriel, the upper part of pale stucco like spattered clay, and the roof red-tiled. Littlefield was the Great Scholar of the neighborhood; the authority on everything in the world except babies, cooking, and motors. He was a Bachelor of Arts of Blodgett College, and a Doctor of Philosophy in economics of Yale. He was the employment-manager and publicity-counsel of the Zenith Street Traction Company. He could, on ten hours' notice, appear before the board of aldermen or the state legislature and prove, absolutely, with figures all in rows and with precedents from Poland and New Zealand, that the street-car company loved the Public and yearned over its employees; that all its stock was owned by Widows and Orphans; and that whatever it desired to do would benefit property-owners by increasing rental values, and help the poor by lowering rents. All his acquaintances turned to Littlefield when they desired to know the date of the battle of Saragossa, the definition of the word "sabotage," the future of the German mark, the translation of "hinc illae lachrimae," or the number of products of coal tar. He awed Babbitt by confessing that he often sat up till midnight reading the figures and footnotes in Government reports, or skimming (with amusement at the author's mistakes) the latest volumes of chemistry, archeology, and ichthyology.

Dorf's comments hardly seem worth the thoughtful discussion they're getting here. Though one can parse them many different ways, it seems to me the point was to say something spiteful about UC Irvine, while pumping up Chemerinsky and his cheerleaders in the elite law school academy.

He's right that better schools produce better lawyers, and that this doesn't have as much to do with the higher quality of instruction at such schools as it does the attributes of the students. I'd even venture that the instruction at top tier schools in some ways hampers the development of students into good lawyers, insofar as many top schools' curricula are clogged with faddish political subjects (legal realism, etc.) at the expense of more practical subjects.

But the bottom line is that Dorf doesn't seem to have (or even pretend to have) any particular knowledge of the performance of lawyers as a function of their educational background. It appears he hasn't ever practiced law full time, so why would anyone consider him a reliable judge of lawyer performance?

I went to a low-ranked law school, and (perhaps inevitably) am having a hell of a time figuring out why Dorf is even taken seriously on this.

I went to a low-ranked law school, and (perhaps inevitably) am having a hell of a time figuring out why Dorf is even taken seriously on this.

Because of the signalling value of his credentials, not because he has any specialized knowledge, expertise, or analytical insight on the matter. In other words, for the same reason people assume hot women are nice.

My last few comments on this blog have been about this subject, and I don't want to sound like a broken record, but this is just too blatant to pass up. A law professor admits that grads from a top tier school learn virtually no law while in law school. Do we really think that grads from lower tier schools learn all that much more law? Law school is a racket, and I say this as someone who graduated from law school and practices law and has experience of the relationship, or lack thereof, between the two. Any one who wants to should be free to render legal advice, for pay or not, regardless of whether they've attended law school, and any one who wants to should be free to listen to and accept that legal advice.

To the commenter who thinks we have too many lawyers but not enough doctors: Where do you imagine the interests of the politically-powerful AMA, which is in the monopoly business (bestowed and enforced by the government) of accrediting old and new medical schools, lie -- in the direction of more medical schools and more doctors or fewer medical schools and fewer doctors?

Everyone's rhetoric is about access to justice and affordable medical care, yet the powers that be hypocritically act in their own financial interests to bottleneck access to these fundamental goods.

And yeah, sure, we're patriots, so we'll go along with that same government's plan to tax us on income needed for the necessaries of life, limiting further our ability to pay for health care and at the same time build some modest financial security, and we'll just believe that the same government is acting in OUR best interests when it initiates a war of aggression against another state and demands that we pay for it.

"I agree with much of your comment, but you can't believe society would be better off if it had more people bumbling around like the litigants on the Judge Mathis show."

1. Seems like a small price to pay for the much greater good of freedom.

2. Good judges, unlike Judge Mathis, enforce discipline and a modicum of competence. I've occasionally found myself in court in another county where they do things a little differently procedurally than my home county. My experience is that the court personnel and judges are helpful in those circumstances, as they should be, since justice should not be the private enclave of the initiated. It doesn't take much time out of their day to tell me, in response to my inquiry, e.g., that in this county you have to file a written request for discovery from the prosecutor, whereas in my home county they just give it to you.

3. Litigants even now are entitled to represent themselves pro se, though the common wisdom is that this is a bad idea. If a person can do that, they should be able to have Uncle Joe speak for them in court, on the theory that Uncle Joe is a better speaker and may have some knowledge of the pertinent area of the law. If the Unauthorized Practice of Law statutes were repealed, it would presumably become part of common wisdom that not only should you not represent yourself but you also shouldn't just hire any old friend or relative to represent you (though in some circumstances this would work out better, financially or otherwise, for the litigant). Even now, people generally know that it's not wise to just randomly pick a lawyer out of the phone book.

John, we've been through this before, and I think it's the height of foolishness. The most pernicious aspect of it is that it guarantees that the poor will have inadequate legal representation; court-appointed (qualified) counsel will evaporate because virtually no one will validly be able to say that they cannot afford counsel. For that matter, what will happen to ineffective assistance of counsel? People (mainly the poor) will lose lawsuits they ought to have won because their "lawyer" was incompetent, leaving the litigant with no remedy available to them. For any number of reasons, it's a terrible idea - medicine and law at a minimum are two fields where the state can legitimately and should require certification.

With Prof Dorf's contributions, it seems that Drake wasn't the only academic to make a mess out of l'affaire Chemerinsky. All the talk about elite vs. middling ranked law schools, and which ones supposedly do a better job of "producing better lawyers," has little connection to reality. The practice of law isn't some monolithic activity, as if all lawyers spend their time doing the same thing and all legal issues come in one size. Much of it is quite pedestrian; some of it (if truth be told, less than most non-lawyers would imagine) is quite sophisticated. The legal marketplace is getting better at matching legal service providers to clients, as the clients (particularly the largest corporate clients) have become very savvy at matching their needs with the price of the service they are getting. Oddly, the pedestrian parts of legal practice aren't of much interest to law professors or law schools, and that lack of interest is inversely proportional to the self-image of the particular school or professor on the "elitism" scale that Prof Dorf was using.

Ann's reactions are revealing in a different way. She says: "Students who don't get into top tier schools don't deserve to be called 'mediocre.'" Dorf might respond that he is just calling their credentials mediocre, and is making no evaluation of their personal abilities. When law firms and (even more so) law schools are hiring, of course, all of the "elitist" stuff Ann is dumping on here determine, in substance, how the choices get made. Part of the reason is that it's just too difficult to wade through a stack of resumes and try to evaluate all the candidates. You need some criterion to whittle it all down to manageable numbers. Many employers use the academic "elitism" stuff to perform that function, knowing full well that it is (at best) only a rough indicator of a candidate's suitability. Clients (particularly corporate clients shopping around), too, rely on the same "elitism" and look for the sort of credentials that Dorf is talking about.

Ann's final comment is even more interesting: "Law professors ought to know when they have snobby, elitist opinions and to make some effort to hide it." But law schools live and die by trying to make consumers (students and employers) act on just those kinds of "snobby, elitist opinions." One of the funniest examples of an ad trying to turn that attitude against itself was an ad that Hofstra used to run (perhaps still does), announcing that "Harvard is the Hosftra of Massachusetts" and asking why any student would prefer the imitation over the real thing. (For those who aren't familiar with it, Hofstra defines the category of "middling-ranked" (or lower) academic institutions.)

Ann's real objection here is one of taste -- the "tone" she was referring to over the weekend in discussing Sullivan's post. I thought Dorf's piece was a bit silly in some respects, but I didn't have much problem with its tone. Elitism is a fact of life, perhaps the most important fact of life, for academic institutions. They live and die by it every day. So why pretend otherwise, and what's the value in trying to hide that reality?

"Elitism is a fact of life, perhaps the most important fact of life, for academic institutions."

Very true. Considering the fact that Dorf seems never to have actually done anything in life beyond attend and work for elite schools, it would make sense that he would support that elitism. Those of us who have actually done things, like try cases and work for real clients, reserve the right to withold judgment on the value of Dorf's opinion relating to actual practice of law and who is and is not a "good lawyer".

Part of the reason is that it's just too difficult to wade through a stack of resumes and try to evaluate all the candidates. You need some criterion to whittle it all down to manageable numbers.

Except that isn't really true.

1. There is bias toward graduates of elite schools with otherwise unimpressive resumes and mediocre transcripts when they are in direct competition with non-elite school grads with far better resumes and far better grades. This holds even if the non-elite grad was an Engineering Major and the elite grad was an English major. So using credentials as a proxy for analytical ability or work ethic is absolute hogwash. It's just discrimination in favor of people who went to certain schools.

2. It does not take that long to glance at a resume and a transcript before an interview. That is standard practice.

Mort: "So using credentials as a proxy for analytical ability or work ethic is absolute hogwash. It's just discrimination in favor of people who went to certain schools."

"Hogwash" it may be -- I think you're protesting too much here, but it is certainly true that there is no direct or necessary positive correlation between "analytical ability or work ethic" and the "elite" nature of any particular applicant's college or law school. Of course, there is no negative correlation either. If one had the data to analyze the issue, I suspect you would find some modest degree of positive correlation between "analytical ability or work ethic" and completion of a degree program at an "elite" academic institution.

Whether we differ on any of that, however, the fact remains that academic credentials are and have been used in just that way by consumers and employers for a long time in many different markets -- by law and grad schools when they market themselves to and then evaluate candidates for admission, by judges when they evaluate potential clerks, by law firms when they evaluate potential associates, etc. You can dismiss all of that as irrational if you want, but it's definitely how the market functions today (and has functioned for decades). I would be slow to dismiss as irrational such consistent behaviour by consumers in a market over a long period of time, where all are motivated by self interest to choose whatever they judge to be in their self-interest.

The process of hiring associates at a law firm is very time consuming; that matters when one recalls that time is all a lawfirm typically has to sell. I think you underestimate how many resumes law firms receive, how little trust or confidence employers have in grades or transcripts to reveal anything of significance, and how important it is to whittle down the candidate pool to a number that can manageably be invited to come for an interview. For better or worse, "elite" academic credentials are used to perform those functions. And, as rough approximations go, it seems to work OK.

As to the question about mobility - after a certain point, the best way to move is to have a book of business, i.e. a client base. My experience is that most firms don't lateral in attorneys who can't cover at least some of their overhead. Yes, sometimes when a firm has a pressing need for someone with specific expertise, but usually not. But that does allow the attorney without the elite credentials to lateral in to a firm that wouldn't have given him a first look while he was in law school.

If one had the data to analyze the issue, I suspect you would find some modest degree of positive correlation between "analytical ability or work ethic" and completion of a degree program at an "elite" academic institution.

You would also find some modest degree of positive correlation between "analytical ability or work ethic" and completion of a degree program at a non-"elite" academic institution. Which is why the discrimination is irrational if one is looking for quality. But since when are elitists actually looking for quality?

You can dismiss all of that as irrational if you want, but it's definitely how the market functions today (and has functioned for decades). I would be slow to dismiss as irrational such consistent behaviour by consumers in a market over a long period of time, where all are motivated by self interest to choose whatever they judge to be in their self-interest.

As for the cascade effect of credentials persisting over time rather than dying out, you seem to be ignoring that the self-interest of alumni of such an institution is to promote the institution and discriminate in favor of its recent grads. Since there isn't much or any difference between those from non-elite institutions and those from elite ones, if you came from an elite one, all things equal, why not choose the home team?

Worse, you really seem to ignore that false positives occur, often. US News Reports rankings of graduate/professional schools are notoriously bad at ranking anything other than name-recognition/academic reputation and the size of the school's endowment. You can find better, alternate ranking systems from the Washington Monthly or Professor Brian Leiter. Don't take my word for it; I believe the deans of at least 60 schools refused to give US News data for their rankings this year because the rankings are erroneous and harmful.

Mort -- I doubt that this guy went to a very good school, actually.

Hmm. I'll look for the Miers at 24 pic if you look for this guy's resume.

I do find the whole idea that the best lawyers come out of the elite schools a bit preposterous. They aren't even necessarily the smartest - I scored in the top 1% on both the LSAT and MBE, and attended a relatively low ranked law school. But I was married, working, and nearing 40 at the time, none of which were conducive to picking up and moving halfway across the country.

I have met some extrodinary grads from elite schools. But overall, my experiences have been negative - since most of the elite school grads I have worked with or against tended to be working for the top firms. The two places I have the most experience are in writing patents and in litigation, and those top firms don't tend to excell at either.

Mort says: "But since when are elitists actually looking for quality?" You are just equating consumers and employers in a broad market for legal services with "elitists," and then using that moniker to dismiss their conduct in choosing providers of legal services. Among the many problems with that formulation is that, in the market for legal services (educational or professional), consumers and employers are obviously looking for "quality."

Your other two points -- that the "old boy" network explains the preference for graduates of "elite" institutions, and anyone who doubts that is "ignor[ing] that false positives occur, often" -- aren't much better. Whatever importance the "old boy" network once had in legal hiring or admission to law schools, it's very much reduced today. The competition for legal services, and the imperative that the providers of those services assemble a work-force that can do it, killed that system long ago. Particularly in larger law firms today, self interest measured by the bottom line is all that matters. It's not that those firms or other employers have changed their view that "elite" credentials are important, paticularly when hiring for entry-level legal positions. But they have unquestionably expanded their view of what counts as an "elite credential."

As for false positives, it's obvious that they happen often regardless of the criterion one uses to select potential interviewees for any position. No one is suggesting that a degree from an Ivy school or an equivalent "elite" institution guarantees any particular level of competence. But it would be even more foolish for an employer or consumer of legal services to indulge the opposite view -- to imagine that a degree from an Ivy institution gives one reason to expect a lack of competence. The observed behaviour in the market suggests that most consumers and employers think that there is a greater chance that a person holding a degree from an "elite" institution will provide the service they want (be it the service of a law professor or a lawyer), better than someone lacking that credential. That judgment will often be wrong. But that's a long way from saying that false positives will predominate, or that the consumers and employers are acting irrationally.

You are just equating consumers and employers in a broad market for legal services with "elitists," and then using that moniker to dismiss their conduct in choosing providers of legal services.

Perhaps the strawman you knocked down was a poor argument, but that strawman wasn't the argument I made. I said absolutely nothing about any old boys network.

By elitists I mean people like Michael Dorf who went to elite institutions and make hiring decisions that favor other people who went to elite institutions. Their gender, class, race, or religion is irrelevant.

Nor did I conflate consumers and employers. You mentioned three specific markets: by law and grad schools when they market themselves to and then evaluate candidates for admission, by judges when they evaluate potential clerks, by law firms when they evaluate potential associates. I responded to that. You seem to have a serious problem grasping the point that the quality of a law student or lawyer cannot be discerned or predicted reliably and quality is distributed in unknown proportions across elite and non-elite institutions. As a result, decision-makers simply pick people with elite credentials assuming there is no loss of quality. That doesn't mean they think there is -- or that there is -- any gain in quality. A judge who went to Yale picks clerks who went to Yale because he went to Yale. Not because the clerk is guaranteed to be better than someone who went to Hofstra.

Your argument makes about as much sense as the claim that all advertising informs consumers and results in educated and informed decision-making on the basis of quality and nothing else. No, not really. In plenty of markets, people buy stuff just because the marketing campaign was clever and other people have started buying the product already. Lemmings aren't running toward the cliff because there is a pot of gold at the bottom of the ravine. They're running toward the cliff because all the other lemmings are running toward the cliff.

You're like the overcompensating guy at the high school reunion who still hasn't gotten that popularity contests are meaningless.

No one is suggesting that a degree from an Ivy school or an equivalent "elite" institution guarantees any particular level of competence.

Actually, that is precisely Professor Dorf's argument. If you look in the comments section of his blog, he writes: "In response to Sally, I'll just say that, yes, I am this arrogant and elitist if what you mean by that is that I believe that, on average, students selected for admission to the most selective schools turn out to be better lawyers than those from less selective schools."

But he's saying on average. That's pretty far from a guarantee that the man with the posh school on his resume is going to do better than his fellows. There's plenty of room for the bell curves to overlap, as, in fact, they do.

There's plenty of room for the bell curves to overlap, as, in fact, they do.

Yeah, and the problem is he hasn't shown any evidence that the bell curves in fact overlap. He just posited it without any proof whatsoever. Validity does not soundness make and an ipse dixit, even from a law professor, is not an argument.

Yeah, and the problem is he hasn't shown any evidence that the bell curves in fact overlap. He just posited it without any proof whatsoever.

Huh? So . . . wait . . . your position is that we should assume the bell curves don't overlap, unless there's evidence they do? That the dumbest Ivy leaguer is smarter than the cleverest non-Ivy leaguer?

Frankly, that's kind of ridiculous. I can think of counterexamples right off the top of my head. Although I am not going to name names.

And besides, mathematically, the way the normal distribution/bell curve is defined, there's always theoretical overlap. The curve extends out into infinity in either direction. Trivially true, yes, I know, but true all the same.

No. My position is we shouldn't assume anything. I know it's hard to believe. But there is a neutral position.

Fair enough.

I think that in a casual editorial comment, we can allow Dorf to note that he thinks the average top tier student turns out better than the average second or third tier student, without inferring anything like this:

No one is suggesting that a degree from an Ivy school or an equivalent "elite" institution guarantees any particular level of competence.

Actually, that is precisely Professor Dorf's argument.

Er, not really. "Average" is not absolutely incompatible with the construction you placed on it, if you assume an extremely concentrated distribution or a really big gap. But in general, that's not what people mean when they discuss averages and human populations.

Actually, you're committing a fallacy of accent, and omitting the text that comes after, thereby taking me out of context. The right emphasis on that statement is "any particular level of competence". It isn't clear that the writer of that phrase (which wasn't me) necessarily means "any particular level of competence [in a given individual]." Ad in my response, I go on to quote Dorf directly, in which he uses the term "on average". So I didn't distort anything. But that is what you're doing.

No one is suggesting that a degree from an Ivy school or an equivalent "elite" institution guarantees any particular level of competence.

Actually, that is precisely Professor Dorf's argument. If you look in the comments section of his blog, he writes: "In response to Sally, I'll just say that, yes, I am this arrogant and elitist if what you mean by that is that I believe that, on average, students selected for admission to the most selective schools turn out to be better lawyers than those from less selective schools."

Dorf: "As far as I'm concerned, the only really contestable point I've made in these posts and comments is that excellent students become better lawyers than average students, even if the average students get a better education. That could be wrong, and certainly there would be some point at which it would be obviously wrong: e.g., a student with excellent qualifications who learned literally no law. (When I said Yale teaches no law I did not mean that literally.) Anyway, this was a hunch based on personal observation of former students and my contacts with lawyers in the fairly frequent pro bono and paid consulting work I do. If I'm wrong, I'm happy to be corrected by empirical data."

I must duly agree with Mr. Dorf's comments! I suggest you read up on the concept of cognitive stratification (see The Bell Curve by Richard J. Herrnstein)where raw intelligence becomes the overridingfactor in the ability to obtain and retain therewards of an advanced education.

The basic fact of the matter is that the very heritable trait of intrinsic IQ is the largest factor in the ability of any student to benefit from advanced education methodologies.

The reason why Yale, Harvard et al are theflagships of law in America is that over many years a self-selective program ofeconomic and cognitive stratification has takenplace such that only rich BRIGHT students get to enter and pass throughthe corriders of these institutions.

The extreme nature of this self-selection is such that there are SO MANY students whose SAT scores are in the 99.5 percentile upon entry,that there is no hope of a lesser student ever being able to enter much less compete in such a rarified academic stratosphere.

In short, even the best student from a mediocre school would be the 99 lbs weakling amateur going up against a cohort of 250 lbs pro-level academic superstars who just CRUSH the competition simply because they are so much more skilled and far SMARTER rightfrom the get-go.

Although this sounds depressing, it's tough-luckfor you, since in America, the smart and strong get ahead and the weak and dumb don't!

And really! That's the way it SHOULD BE!

You can't do much about your IQ and sheer hard work does pay off many times but you will have to realizeand accept the fact that there's a whole lot of students are just inherently far smarter and BETTER academically than you are!

And NO AMOUNT of training and education will turn an inherently medicocre studentinto an academic superstar because of the basic and heritable traits of raw IQ, thus advanced methods are economically and physically wasteful when the inherent capability and capacity for advanced learning is just not there!

There are numerous empirical studiesthat bear this simple fact that bright studentswill attact other bright students thus raising the bar (so to speak) on the base level of academic ability in any student body.

Conversely, mediocre students tend to go where they feel they have the ABILITY to compete on a more level playing field thus enhancing the effect of cognitive stratification which will eventually bear its fruit in general societywhere the inherently smart will segregate themselves away from those who are no so bright.

This will bring, of course, numerous physical and economic side-effects upon general society as the already bright get even brighter as they inter-marry and procreate and conversely, the already dumbget even dumber as they inter-marry and procreate.

It's not my job to pontificate on these eventual effects but to merely state their obviousness and if that sounds arrogant it is meant to be so!

Hey! I'm inherently smart! And I like it that way!

In America, there are superstars and the rest of "them" (aka the Proletariat)Due to the luck of genetics and sheer hard work I have EVERY INTENTION of taking advantage of my inherent abilities to "Get Ahead" and become part of the "Elite" because I can tell you that it totally sucks to be poor, dumb and unconnected!

And I can also tell youthat within 50 years,that there will be TWOAmericas; one a segregated cognitive and technological elite and of course everyoneelse.

This time the segregation will NOT be based upon colour of skinor even physical disability,but rather based upon cognitive and technologicalability to harness theavailable natural and artifical brainpower around themselves.

How America will deal withthis is a whole other debatebut students SHOULD readthe Bell Curve byHerrnstein which WARNS uswhat can happen ifsociety does not extendimproved education to the masses.

So my suggestion to youis to FIGHT the Nerdslest they slay you withtheir graphingcalculators & witty pens,otherwise you might wantto think about marryingrich and smart!